Green & Coates Street Passenger Railway Co. v. Bresmer

Mr. Justice Mercur delivered the opinion of the court, May 2d 1881. This action was to recover damages for injuries which the defendant in error suffered by the kick of a horse, owned by the company. He was in the employment of the latter as an hostler. As such, he had charge of several horses, including the one which injured him. A master does not warrant his servant’s safety. He, however, is under an implied contract with those whom he employs, to adopt and maintain suitable instruments and means with which to carry on the business in which they are employed. This includes an obligation to provide a suitable place in which the servant, being himself in the exercise of due care, can perform his duties safely or Avithout exposure to dangers that do not come within the reasonable scope of.his employment: Cayzer v. Taylor, 10 Gray 274; Seaver v. Boston and Maine Railroad Co., 14 Id. 466 ; Gilman v. Eastern Railroad Co., 10 Allen 233; Coombs v. New Bedford Cordage Co., 102 Mass. 572. A servant, however, assumes the risk naturally and reasonably incident to his employment. He is not bound to risk his safety in the service of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends injury to himself: Hayden v. Smithville Manufacturing Co., 29 Conn. 548; Mad River & Lake Erie R. R. Co. v. Barber, 5 Ohio St. 541; Whart. on Neg., sect. 217. Inasmuch as the relation of master and servant cannot imply an obligation on the part of the master, to take more care of the servant than he may reasonably be expected to take of himself, he cannot complain if he is injured by exposure, after having the opportunity of becoming acquainted with the risks of his employment, and accepts them: Id. sects. 214 and 217; 1 Add. on Torts, sect. 255. The undoubted evidence in this case shows the defendant in error had full knoAvledge of the vicious habits of the mare which kicked him. She had kicked others, and her reputation was well known to the persons employed in the stables, and they were warned to guard against being injured by her. [107] Tho defendant in error testified, that she had kicked him before, yet he swears, “I never complained or asked to have my stock changed;” and still further, “I always strapped up the front leg, but on that morning, I could not find my strap.” Thus, he not only had full knowledge of her practice, and of the risk and danger he incurred when grooming her, yet he made no complaint, and was accustomed to protect himself by so securing a front leg as to prevent her kicking. No duty was imposed on tho company to inform him of what he so well knew, nor to forbid his grooming the mare. He voluntarily assumed the risk, and continued to expose himself to a well-known danger. He cannot now cast on his employer a liability for tho injury which he thereby suffered. It matters not that the master did know the vicious habits of the mare. It is the knowledge of the servant which withholds from him a right of action: Haskin v. New York Central Railroad Co., 65 Barb. 129; Frazier v. Pennsylvania Railroad Co., 2 Wright 104. It follows, the learned judge erred in not affirming the points covered by the fifth, sixth, seventh, eighth and tenth assignments. We discover no error in the eleventh and twelfth assignments. In so far as the remaining assignments are in conflict with this opinion, they are sustained. Judgment reversed.